Friday, February 3, 2017

Livestock Grazing on Public Lands: Law, Policy and Rebellion: 2017 Idaho Law Review Symposium

I am delighted to be the faculty advisor for the 2017 Idaho Law Review Symposium, "Livestock Grazing on Public Lands:  Law, Policy and Rebellion," which will be held in Boise, Idaho on March 31, 2017.  We have a star-studded array of public lands experts coming for the event, and plan to stream it live.  More on that soon.  In the meantime, if you are in the Boise area, here is the registration link.  We also are doing some amazing partnering events associated with the symposium with BLM Idaho, which I will post more about in the coming days.

 

The line-up is below:

 

8:30:  Introductions and welcome

9:00 – 10:30:  Solicitor's Panel:  The Past and Future of Livestock Grazing on Public Lands

Moderator: Stephen R. Miller, University of Idaho College of Law

John Leshy, Emeritus Harry D. Sunderland Distinguished Professor of Real Property Law, U.C. Hastings College of the Law; formerly Solicitor, U.S. Department of the Interior during Clinton administration

William Myers III, Partner, Holland & Hart, formerly Solicitor, U.S. Department of the Interior during George W. Bush administration

Bret Birdsong, Professor of Law, UNLV William S. Boyd School of Law, formerly Deputy Solicitor, U.S. Department of Interior during Obama administration

[Invited: Trump administration Solicitor’s Office representative]

 

10:45 – 12:15:  Species Conservation and Livestock Grazing

Moderator: Anne Corcoran Briggs, Attorney-Advisor, Boise Field Office, U.S. Department of the Interior

Cally Younger, Legal Counsel, Idaho Office of Governor C.L. “Butch” Otter

Sam Eaton, Deputy Administrator & Legal Counsel, Idaho Governor's Office of Species Conservation

Mara Hurwitt, Wild Horses and Livestock Grazing

Anthony L. Francois, Pacific Legal Foundation

Kristin Ruether, Western Watersheds Project

 

12:30 – 2:00:  Lunch & Debate:  The Transfer of Public Lands Movement

Moderator: Barbara Cosens, University of Idaho College of Law

John Leshy, Emeritus Harry D. Sunderland Distinguished Professor of Real Property Law, U.C. Hastings College of the Law; formerly Solicitor of the U.S. Department of the Interior

Richard Seamon, Professor of Law, University of Idaho College of Law, formerly Assistant to the Solicitor General of United States, U.S. Department of Justice; co-author of the legal analysis prepared for the Utah Commission for the Stewardship of Public Lands

 

2:15 – 3:45:  What is the Role of Government?:  Alternative Regulatory Structures for Livestock Grazing

Moderator:  Jerry Long, University of Idaho College of Law

John Nagle, John N. Matthews Professor of Law, The Law School, University of Notre Dame

Peter Appel, Alex W. Smith Professor of Law, University of Georgia School of Law

Rocky Barker, Idaho Statesman, Letters from the West columnist

Alan Schroeder, Schroeder & Lezamiz Law Offices, LLP

 

4:00 – 5:30:  Flexibility and Oversight:  Alternative Livestock Grazing Management Options

Moderator:  Anastasia Telesetsky, University of Idaho College of Law

Tim Murphy, U.S. Bureau of Land Management, State Director, Idaho

John Foltz, Professor & Special Assistant to the University of Idaho President for Agricultural Initiatives  

Melinda Harm Benson. Associate Professor, Department of Geography & Environmental Studies, University of New Mexico

February 3, 2017 | Permalink | Comments (0)

Thursday, February 2, 2017

Drake Law School and the University of Colorado Denver’s Center for Sustainable Urbanism Partner to Update Sustainable Community Development Code

NEWS RELEASE

Drake Law School and the University of Colorado Denver’s Center for Sustainable Urbanism Partner to Update Sustainable Community Development Code

DES MOINES, IA | DENVER, CO (February 1, 2017): Drake University Law School has entered into a partnership with the University of Colorado Denver’s Center for Sustainable Urbanism and Clarion Associates, LLC, to update and expand the Sustainable Community Development Code. This online, interactive model code provides state and local governments with examples of the most innovative and up-to-date land use standards to promote sustainable development. The code has been used by numerous cities, towns, and counties across the United States to help tune-up their zoning, subdivision, and other development ordinances by removing barriers, creating incentives, and filling regulatory gaps.

Faculty, research assistants, and students from the partner institutions will collaborate to update the code. Jonathan Rosenbloom, professor of law at Drake Law School, and Rocky Piro, FAICP, executive director of the Colorado Center for Sustainable Urbanism in the College of Architecture and Planning, are co-leads of the code project, with support of an advisory committee comprised of land use and sustainability experts from around the country.

“One of the most powerful tools local governments have is authority over land use,” Rosenbloom said. “The updated code will be an invaluable resource to help local governments utilize this authority in a way that promotes environmentally, socially, and economically sustainable communities.”

Increasingly, local governments are targeting land use and development as pathways to sustainability—from climate change, water conservation, and renewable energy to transportation, food security, community health, and affordable housing. Traditional land use and development policies and patterns, however, are often at odds with community sustainability goals.

Originally created by the Rocky Mountain Land Use Institute at the University of Denver and Clarion Associates, LLC, the Sustainable Community Development Code was designed to solve this problem, offering the best ideas about how to promote sustainability through innovative land use and development standards.

“The partnership between the Center and Drake Law School is an exciting, timely one that will help refresh and expand the model code at a crucial time as local governments take a more prominent role across the nation in promoting sustainable growth and tackling tough issues like climate change,” said Chris Duerksen, former board chair at the Rocky Mountain Land Use Institute and land use attorney with Clarion Associates, which helped create the code.

“The update and maintenance of the code meshes very well with the mission of the Colorado Center for Sustainable Urbanism and its commitment to provide resources that help make cities and towns more vibrant, livable, sustainable, and equitable places,” Piro said.

Students at both universities will work on developing the code as part of their coursework, including students in Drake Law School’s Land Use Law and Sustainability and the Law courses. In addition, each year two Drake Law students will have the opportunity to work on continually updating the code. “This is a great opportunity for students to gain hands-on experience in sustainability practices,” Rosenbloom said.

Drake Law School prepares outstanding lawyers who will promote justice, serve as leaders in their communities and the legal profession, and respond to the call of public service. One of the 25 oldest law schools in the country, Drake combines a rich history with the latest technology and an innovative curriculum. Drake Law School is consistently ranked as one of the Best Law Schools for Practical Training by The National Jurist and focuses on providing practical experience to equip students for career success.

The Colorado Center for Sustainable Urbanism in the College of Architecture and Planning at the University of Colorado Denver is a collaborative home for urban planners, architects, engineers, economists, health professionals, public policy experts, and others to work together in using best available information and best practices to advance sustainable solutions for both the natural environment and the built environment.

The College of Architecture and Planning at the University of Colorado Denver is the only college in Colorado offering comprehensive programs in the design and planning of the built environment, from undergraduate through accredited professional master’s degrees to the doctorate.

# # #

February 2, 2017 | Permalink | Comments (0)

Monday, January 30, 2017

CFP - 4th International & Comparative Urban Law Conference - Cape Town - July 17-18

 

 

4th Annual International  Comparative Urban Law Conference_Page_1

January 30, 2017 | Permalink | Comments (0)

Friday, January 27, 2017

A new conservation easement case from Maine’s highest court is a lesson in statutory interpretation.

ESTATE OF MERRILL P. ROBBINS v. CHEBEAGUE & CUMBERLAND LAND TRUST (Sup. Judicial Ct. Maine Jan. 26, 2017), 2017 WL 370891

A controversy over the development of land encumbered with a conservation easement in Maine sparked an inquiry into who has standing to challenge a conservation easement in the state. In a 3-2 opinion, the court narrowly construed the statute limiting who can enforce a conservation easement (or at least dispute its terms) in the state.

In 1997, a landowner granted a 100-acre conservation easement to a local land trust for preservation in perpetuity of the land in its natural state to protect scenic views and open space values. At some point in the intervening years, the conservation easement was transferred to a successor in interest land trust and the parcel was divided into three. The 100 acres are now held by the town, a developer, and a trust that is the successor to the original landowner. The opinion does not detail the exact spatial arrangement or acreage, but notes that the Trust has the smallest acreage. (I could not tell if the Trust land is physically adjacent to the Town property.) The Town now seeks to develop its portion of the land into a public beach, which will include relocating a bath house, repairing some roads, and building a parking lot. The Land Trust has determined that such activities are in line with the purposes of the conservation easement and approved of the Town’s proposal. The Trust is not happy though and argues that these changes are violations of the conservation easement.

For the both the majority opinion and the dissent, this case turns on the interpretation of Maine’s conservation easement enabling act. Section 478(1) of Maine’s Revised Statutes details who has the ability to bring an action affecting a conservation easement. The statute presents four categories of possible plaintiffs (or intervenors) for “an action affecting a conservation easement.” They are “An owner of an interest in real property burdened by the easement,” the holder of the conservation easement, an entity or person with a third party right of enforcement, or the Attorney General under certain conditions. The only category at issue in this case is (A): the owner of an interest in real property burdened by the easement.

Continue reading

January 27, 2017 | Permalink | Comments (0)

Tuesday, January 24, 2017

Seeking examples of historic preservation funded by upzoning with public benefits

In my non-day job, I am a board member of a local neighborhood association in Boise.  A major upcoming issue in our historic neighborhood is the Salvation Army's closure of a 1921 building known as the Marian Pritchett School, which has provided a home and education for young mothers for nearly a century.  That building, which has a mid-century addition, sits on an entire city block in Boise's oldest residential neighborhood, called the North End.  (Full disclosure:  I live two blocks away from the site.)  The Salvation Army is seeking to sell the building for as much as it can in order to fund a new building several miles away.

The availability of an entire block in this otherwise fully urbanized neighborhood is, quite literally, a once-in-a-generation opportunity.  The question is:  what to do with it?  I am looking for examples from around the country where historic structures have been paired with private development in a project of this scale to (i) preserve the historic building and (ii) confer a public benefit.  There is also a lovely neighborhood park within a block of the site, further enhancing the project's appeal.  One possibility that may be on the table:  the city may be leaning towards up-zoning the site to permit high-density residential in this otherwise single-family neighborhood.  If it does so, the additional revenue to the private developer should permit the conveyance of a public benefit, such as perhaps the operation of a public arts or play program in the adjoining park.  I'd welcome any examples, especially of projects at this scale, that would illustrate how other communities have permitted density in singel-family neighborhoods while also preserving historic structures and enhancing the community at large.  Other interesting projects also welcome.  You can e-mail me at millers <at> uidaho.edu.

(Article about the house here.)

0703 exp marian pritchett school

 

January 24, 2017 | Permalink | Comments (0)

Saturday, January 21, 2017

Our Land, not Trumpland

A "huge crowd" at today's march in Boise.  Not unexpectedly, my sign was land use-themed.

 

IMG_6139

January 21, 2017 | Permalink | Comments (0)

Friday, January 20, 2017

Schleicher on the Economic Consequences of Residential Stability

David Schleicher (Yale) has just posted a new article, Stuck in Place: Law and the Economic Consequences of Residential Stability.  Here is the abstract:

America has become a nation of homebodies. Rates of inter-state mobility, by most estimates, have been falling for decades. Even research that does not find a general decline finds that inter-state mobility rates are low among disadvantaged groups and are not increasing despite a growing connection between moving and economic opportunity. Perhaps more important than changes in overall mobility rates are declines in mobility in situations and places where it is particularly important. People are not leaving areas hit by economic crises, with unemployment rates and low wages lingering in these areas for decades. And people are not moving to rich regions where the highest wages are available.

This Article advances two central claims. First, declining inter-state mobility rates create problems for federal macroeconomic policy-making. Low rates of inter-state mobility make it harder for the Federal Reserve to meet both sides of its “dual mandate” of stable prices and maximum employment; impair the efficacy and affordability of federal safety net programs that rely on state and local participation; and reduce both levels of wealth and rates of growth by inhibiting agglomeration economies. While determining an optimal rate of inter-state mobility is difficult, policies that unnaturally inhibit inter-state moves worsen national economic problems.

Second, the Article argues that governments, mostly at the state and local levels, have created a huge number of legal barriers to inter-state mobility. Land-use laws and occupational licensing regimes limit entry into local and state labor markets; differing eligibility standards for public benefits, public employee pension policies, homeownership subsidies, state and local tax regimes, and even basic property law rules reduce exit from states and cities with less opportunity; and building codes, mobile home bans, federal location-based subsidies, legal constraints on knocking down houses and the problematic structure of Chapter 9 municipal bankruptcy all limit the capacity of failing cities to “shrink” gracefully, directly reducing exit among some populations and increasing the economic and social costs of entry limits elsewhere.

Put together, the Article shows that big questions of macroeconomic policy and performance turn on the content of state and local policies usually analyzed using microeconomic tools. Many of the legal barriers to inter-state mobility emerged or became stricter during the period in which inter-state mobility declined. While assigning causality is difficult, public policies developed by state and local governments more interested in local population stability than in ensuring successful macroeconomic conditions either generated or did not push back against falling mobility rates. The Article concludes by suggesting ways the federal government could address falling mobility rates.

The article was also recently featured in Slate.

 

 

January 20, 2017 | Permalink | Comments (0)

Thursday, January 5, 2017

When you want to travel fashionably...

...come visit me in Idaho.

Vogue named Idaho one of the world's top 10 travel destinations of 2017.  I look forward to welcoming the land use glitterati among you to our fabulous state this year!

From the Vogue write-up...

Photo: Alamy

7. Idaho
Idaho is having a moment. The capital, Boise, may not have an Ace Hotel yet, but it’s quietly setting itself up to be one of America’s most desirable second-tier cities with hip lodging like the Modern Hotel + Bar, indie coffee shops, creative hubs, distilleries, and a serious craft beer scene. And then of course, there’s the incredible access to the outdoors, including more than 190 miles of trails to hike, run, and bike in the Boise Foothills. Hemingway’s beloved Sun Valley, while often overlooked for glitzier mountain towns like Telluride, Park City, and Jackson Hole, is having a renaissance. America’s first destination ski resort area offers some of the best slopes in the U.S. and still maintains a laid-back mountain-town feel (think Aspen in the ’60s). The December 30 opening of the Limelight Ketchum, the first new hotel in more than two decades, will bring some youthful energy to the mountains. And this March, the Sun Valley Resort will host the U.S. Alpine Championships for the first time since 1951. Farther afield, Selkirk Powder Company recently announced it will be offering heli-skiing trips to the Idaho panhandle beyond the Schweitzer Mountain backcountry, giving adventurers access to the rugged and untapped American Selkirk Range of northern Idaho.

January 5, 2017 | Permalink | Comments (0)

Wednesday, January 4, 2017

ABA Sharing Economy Committee forming - seeking interested committee members

I am delighted to be the chair of the newly-formed Sharing Economy Committee of the ABA State and Local Government Section.  We will be sending more information about the committee very soon.  In the meantime, please feel free to e-mail me (millers@uidaho.edu) if you are interested in participating in the Committee.  You do not need to be a member of the ABA to participate.

We will have an organizational meeting later this month, at a date to be determined.

Jamila Jefferson-Jones (UMKC) is the vice chair of the committee, and you can also feel free to reach out to her, as well.

As some may know, Jamila and I are working on the ABA's forthcoming State and Local Government Sharing Economy Manual, which we hope to have out in late 2017.

January 4, 2017 | Permalink | Comments (1)

Saturday, December 31, 2016

2016's Most Downloaded Land Use Law Articles

Here is the 2016 list of the 20 most downloaded land use law-related articles from the SSRN Property, Land Use & Real Estate Law eJournal.  

A note on the method.  First, I sorted all of the articles in the eJournal by most downloads.  Second, to be included in this list, the article had to satisfy two date criteria:  the article needed to have substantive revisions or publication in 2016 and it needed to be first posted to SSRN or first published no earlier than January 1, 2015.  The goal of these requirements is to keep this a list of new articles, not those originally published in, say, 2008 that an author just happened to post to SSRN this year.  Third, the list is limited to those articles in the eJournal that are land use law-related articles.  This required something of a judgment on my part.  Several articles that met the first two criteria are not included here primarily because they fit the criteria of the larger eJournal but were not really land use articles.  I tried to maintain a broad definition of what "land use law" entails; however, some of the articles not included here focused on mortgages or property theory generally that I thought were beyond the scope of this blog.  I am sensitive to the methodology given that, well, an article of mine turned up at the top of the list.  I am open to suggestions for better methods in future years.

A final caveat... We all know that SSRN downloads do not equal importance, but they remain one easy measure to get a sense of what articles were widely read in 2016.  Take it with a grain of salt, but congratulations also to all of those whose work has received significant attention.

Happy new year to all, and happy reading!

 

 First Principles for Regulating the Sharing Economy
53 Harvard Journal on Legislation 147 (2016)
Stephen R. Miller 
University of Idaho College of Law - Boise 
Date Posted: February 22, 2015
Last Revised: March 24, 2016
Accepted Paper Series
1511 downloads

 The City as a Commons
34 Yale L. & Pol'y Rev. 281 (2016)
Sheila Foster and Christian Iaione 
Fordham University School of Law and Università degli Studi Guglielmo Marconi 
Date Posted: August 30, 2015
Last Revised: July 31, 2016
Accepted Paper Series
901 downloads

 The Transfer of Public Lands Movement: Taking the 'Public' Out of Public Lands
Stegner Center White Paper No. 2015-01, S.J. Quinney College of Law Research Paper No.99
Robert B. Keiter and John Ruple 
University of Utah - S.J. Quinney College of Law and University of Utah, S.J. Quinney College of Law 
Date Posted: February 17, 2016
Accepted Paper Series
734 downloads

 Conservation Easements and the Valuation Conundrum
19 Florida Tax Review 225 (2016), University of Utah College of Law Research Paper No. 145
Nancy A. McLaughlin 
University of Utah S.J. Quinney College of Law 
Date Posted: December 18, 2015
Last Revised: July 04, 2016
Accepted Paper Series
609 downloads

 Sign Regulation after Reed: Suggestions for Coping with Legal Uncertainty
47 Urban Law l569 (2015), Cleveland-Marshall Legal Studies Paper No. 15-285
Alan C. Weinstein and Brian J. Connolly 
Cleveland-Marshall College of Law, Cleveland State University and Otten, Johnson, Robinson, Neff & Ragonetti 
Date Posted: September 15, 2015
Last Revised: October 15, 2016
Accepted Paper Series
553 downloads

 The Law of Banksy: Who Owns Street Art?
University of Chicago Law Review, Vol. 83, No. 4, 2016
Peter N. Salib 
University of Chicago 
Date Posted: January 07, 2016
Accepted Paper Series
497 downloads

 Alternatives to the Transfer of Public Lands Act
University of Utah College of Law Research Paper No. 157, Stegner Center White Paper No. 2016-01
John Ruple and Robert B. Keiter 
University of Utah, S.J. Quinney College of Law and University of Utah - S.J. Quinney College of Law 
Date Posted: March 03, 2016
Last Revised: March 08, 2016
Working Paper Series
412 downloads

 Securing Property Rights in Transition: Lessons from Implementation of China's Rural Land Contracting Law
World Bank Policy Research Working Paper No. 4447
Klaus Deininger and Songqing Jin 
World Bank - Development Economics Group (DEC) and Michigan State University 
Date Posted: April 20, 2016
Working Paper Series
330 downloads

 Billy Joel: The Chronicler of the Suburbanization in New York
32 Touro L. Rev. 111 (2015), Touro Law Center Legal Studies Research Paper Series No. 16-16
Patricia Salkin and Irene Crisci 
Touro College - Jacob D. Fuchsberg Law Center and Touro Law Center 
Date Posted: April 11, 2016
Last Revised: May 04, 2016
Accepted Paper Series
272 downloads

 Moral Economies in Early Modern Land Markets: History and Theory
Law and Contemporary Problems, Forthcoming, Yale Law & Economics Research Paper No. 544
Taisu Zhang 
Yale University - Law School 
Date Posted: May 29, 2016
Last Revised: June 23, 2016
Accepted Paper Series
271 downloads

 Fee Simple Obsolete
New York University Law Review, Forthcoming, University of Chicago Coase-Sandor Institute for Law & Economics Research Paper No. 739, U of Chicago, Public Law Working Paper No. 559, Kreisman Working Papers Series in Housing Law and Policy No. 33
Lee Anne Fennell 
University of Chicago - Law School 
Date Posted: January 18, 2016
Last Revised: July 27, 2016
Accepted Paper Series
266 downloads

 Drone Zoning
95 N.C. L. Rev. 133 (2016)
Troy A. Rule 
Arizona State University (ASU) - Sandra Day O'Connor College of Law 
Date Posted: March 10, 2016
Last Revised: December 15, 2016
Accepted Paper Series
257 downloads

 The Ecosystem Approach Under the Convention on Biological Diversity: A Legal Research Agenda
E Morgera, 'Ecosystem and Precautionary Approaches' in J Razzaque and E Morgera (eds), Encyclopedia of Environmental Law: Biodiversity and Nature Protection Law (EE, 2016), Forthcoming, Scottish Centre for International Law Working Paper Series No. 7, Edinburgh School of Law Research Paper No. 2015/17
Elisa Morgera 
Strathclyde Law School 
Date Posted: May 30, 2015
Working Paper Series
257 downloads

 The Sharing Economy as an Urban Phenomenon
Yale Law & Policy Review, Vol. 34, No. 2, 2016, Fordham Law Legal Studies Research Paper No. 2802907, Suffolk University Law School Research Paper No. 16-10
Nestor M. Davidson and John Infranca 
Fordham University School of Law and Suffolk University Law School 
Date Posted: July 03, 2016
Last Revised: August 27, 2016
Accepted Paper Series
256 downloads

 Blurred Lines: Homelessness & the Increasing Privatization of Public Space
Seattle University School of Law, Homeless Rights Advocacy Project, 2016
Alex Glyman and Sara Rankin 
Seattle University School of Law and Seattle University School of Law 
Date Posted: May 11, 2016
Last Revised: May 20, 2016
Working Paper Series
230 downloads

 How Land Use Law Impedes Transportation Innovation
Yale Law School, Public Law Research Paper No. 565, Yale Law & Economics Research Paper No. 549
David Schleicher 
Yale University - Law School 
Date Posted: April 13, 2016
Last Revised: August 02, 2016
Working Paper Series
214 downloads

 Property's Ceiling: State Courts and the Expansion of Takings Clause Property
Virginia Law Review, Vol. 102, p. 1167
Maureen (Molly) E. Brady 
University of Virginia - School of Law 
Date Posted: October 20, 2015
Last Revised: September 03, 2016
Accepted Paper Series
205 downloads

 Access to Landlocked Land: A Case for a Hybrid of Property and Liability Rules
91 Tulane Law Review (2016-2017)
Yun-chien Chang 
Academia Sinica - Institutum Iurisprudentiae (IIAS) 
Date Posted: January 18, 2012
Last Revised: March 14, 2016
Accepted Paper Series
200 downloads

 Sharing Property
University of Colorado Law Review, Vol. 87, 2016, U of Houston Law Center No. 2015-A-16
Kellen Zale 
University of Houston Law Center 
Date Posted: August 21, 2015
Last Revised: April 13, 2016
Accepted Paper Series
197 downloads

 Federal Reserved Water Rights as a Rule of Law
Idaho Law Review, 2015, Lewis & Clark Law School Legal Studies Research Paper No. 2015-13
Michael C. Blumm 
Lewis & Clark Law School 
Date Posted: July 26, 2015
Last Revised: March 09, 2016
Accepted Paper Series
196 downloads

December 31, 2016 | Permalink | Comments (0)

Wednesday, December 21, 2016

New edition of West's Land Use and Sustainable Development Law will be available for Fall, 2017

I am pleased to announce that I am joining the 9th edition of West's Land Use and Sustainable Development Law (link to 8th edition here), which will be available for use (along with an updated Teacher's Manual) in time for the the Fall, 2017 term.  Published continuously since 1954, this casebook is believed to be the oldest land use law casebook in the country.  

Since 2003, the casebook has been edited by John Nolon and Patricia Salkin.  For this edition, Jon Rosenbloom and I are joining the authorship team.  The four of us have spent considerable time updating the casebook, ensuring that it covers both the basics--everything from CUPs to takings--as well as cutting edge topics like the sharing economy, hydraulic fracturing, and trends in green development.  

Stay tuned for more exciting details on the casebook in the months to come.  Of course, feel free to reach out to any of us if you would like more information in the meantime.

 

 

December 21, 2016 | Permalink | Comments (0)

Monday, December 19, 2016

CFP: Hawaii Law seeking symposium submissions on sharing economy

From the editor:

I am the current Co-Editor-in-Chief of the University of Hawaii Law Review.  The Law Review is planning a Spring Symposium on the topic of the sharing economy.  More information about our symposium is available at www.hawaiilawreview.com/symposium.

One of our panels will focus on the topic of regulation in the context of the home sharing economy (e.g., AirBnB).  We are hoping that you may be able to help us publicize a call for articles on topics intersecting Land Use Law and the sharing economy, on the Land Use Prof Blog.

More information about our submission guidelines is available at the "Submission" section of our website (www.hawaiilawreview.com).  We will be accepting submissions through February 17, 2017, for publication in April/May. 

December 19, 2016 | Permalink | Comments (0)

Cal Supreme Court issues major decision on whether transient occupancy taxes to be collected by online travel companies (and cities everywhere should consider re-writing their TOT codes)

Last week, the California Supreme Court issued a tremendously important case for the land use world (30 attorneys are listed on the papers, and you can imagine the army of associates working behind the scenes).  The case, In re Transient Occupancy Tax Cases, No. S218400, 2016 WL 7187624 (Cal. Dec. 12, 2016), concerns the amount of transient occupancy tax (TOT) due when customers purchase a hotel room through online travel companies (OTCs).  The issue, which may seem arcane at first, is a very big deal because TOT tax is one of those "welcome stranger" taxes not paid by city residents that became popular with the fiscalization of land use that arose after property tax revolutions forced cities to rely on more esoteric forms of funding.  In San Diego, the TOT tax is 6%, more than sales taxes in many places.

In simple terms, the case is about whether TOT is owed on the "wholesale" price for which hotels contract with OTCs, or whether TOT is owed on the amount the customer pays (the "wholesale" price plus some OTC profit and fee increment--see below for the detailed description).  The legal issue was one of code interpretation.  The California Supreme Court held that under San Diego's existing TOT provision the tax is only due on the wholesale price.  That is the bad news for cities; the good news is that the Court based its decision only on code interpretation, which could easily be re-written to specifically address and include OTCs.    

This is an important case for cities across the country to read carefully.  Moreoever, cities will want to contemplate re-writing their TOT ordinances to explicitly reference OTCs.  This case--and its excellent briefing--provides a guide on how to do so for those local governments that need guidance.

Defendants here were a who's who of OTCs including: Hotels.com, L.P.; Priceline.com, Inc.; Travelweb LLC; Expedia, Inc.; Hotwire, Inc.; Hotels.com G.P., LLC; Travelocity.com, LP; Site59.com, LLC; Orbitz, LLC; Travelnow.com; Lowestfare.com, LLC; Trip Network, Inc. (doing business as Cheaptickets.com); and Internetwork Publishing Corp. (doing business as Lodging.com).

Below are several useful excerpts.  Here is the Court describing the OTC business arrangement:

 
We first describe the nature of the transactions at issue. OTCs publish on their websites comparative information about airlines, hotels, and car rental companies, and allow consumers to book reservations with these travel and hospitality providers. OTCs may do business under any of several business models; involved here is the one known as the merchant model.2 Under the merchant model, OTCs contract with hotels to advertise and rent rooms to the general public. OTCs handle all financial transactions related to the hotel reservations and become the merchant of record as listed on the customer's credit card receipt, but do not themselves own, operate or manage hotels, maintain an inventory of rooms, or possess or obtain the right to occupy any rooms. The price the hotel charges the OTC for the room is the “wholesale” price; rate parity provisions3 in most master contracts between OTCs and hotels bar the OTC from selling a room for a rent lower than what the hotel quotes its customers directly. The OTC offers the rooms to the public at retail prices. Its charge to the customer includes a “tax recovery charge,” which represents the OTC's estimate of what the hotel will owe in transient occupancy tax based on the wholesale price of the room as charged by the hotel to the OTC. The OTC provides the customer with a receipt that lists the room rate and, on a separate line, an amount for taxes and service fees.4 Once the reservation has been made and paid for, the OTC provides customer service until the customer checks into the hotel. The hotel then bills the OTC for the wholesale price of the room plus the transient occupancy tax the hotel will have to pay based on the room's wholesale price. The OTC remits the charged amount to the hotel, which in turn remits the tax to San Diego; the OTC retains its markup and service fees.
 
Id. at *1.  Here is the Court applying this model to the San Diego ordinance:

San Diego contends the tax base for calculating the tax must be the full amount of the payment the customer is charged to obtain occupancy. In San Diego's view, the stated purpose of the tax—“It is the purpose and intent of the City Council that there shall be imposed a tax on Transients” (San Diego Mun. Code, § 35.0101, subd. (a))—reflects a legislative focus on the transaction between the OTC and the customer. The statutory definition of rent—“the total consideration charged to a Transient as shown on the guest receipt for the Occupancy of a room” (San Diego Mun. Code, § 35.0102)—in San Diego's view, shows the tax base was intended to be the total amount quoted to, charged to, and paid by the customer, not the lesser amount the hotel has agreed to accept as its share of the rental proceeds; indeed, a customer cannot obtain the privilege of occupancy by paying only the amount the hotel nets on OTC transactions nor anything less than the total amount quoted and charged to him or her. Moreover, San Diego observes, the tax is determined and collected at the same time the room is booked (id., § 35.0112, subd. (a))—the “taxable moment,” as San Diego calls it.

We agree with San Diego's argument in part. The ordinance imposes the tax on the amount “charged by the Operator” (San Diego Mun. Code, § 35.0103); it does not refer to amounts “received” or “collected” by the operator. To the extent a hotel determines the markup, such as by contractual rate parity provisions requiring the OTC to quote and charge the customer a rate not less than what the hotel is quoting on its own website, it effectively “charges” that amount, whether or not it ultimately receives or collects any portion of the markup, and that amount is therefore subject to the tax. Because, however, the ordinance imposes on “the Operator” alone the duty to remit the tax (San Diego Mun. Code, § 35.0114, subd. (a)), and subjects the operator alone to the assessment process when taxes are determined to be unpaid and owing (id., § 35.0117, subd. (a)), it does not appear to contemplate that the city treasurer may assess an intermediary such as an OTC for unpaid transient occupancy tax.
 
San Diego contends the entire amount paid by the customer, presumably including any portion of the markup within the exclusive control of the OTC above that set by the hotel, is subject to the tax because that amount is charged “for the privilege of Occupancy” within the meaning of the ordinance, and no lesser amount will gain that privilege for the customer. (San Diego Mun. Code, § 35.0103.) This contention, however, fails to acknowledge that the relevant ordinance identifies the taxable amount as the rent “charged by the Operator” (ibid.)—and the only such amount involved in online room rental transactions is, as we have seen, the wholesale room rate plus any portion of the markup set by the hotel pursuant to the contractual rate parity provisions or otherwise. Thus, it is the wholesale room rate plus the hotel-determined markup, exclusive of any discretionary markup set by the OTC, that is “charged by the Operator” and subject to the tax.

Id. at *3.

 

 

 

 

 

December 19, 2016 | Permalink | Comments (0)

Wednesday, December 7, 2016

Detroit requires community benefits agreements with November election vote, but fewer projects are subject to the law than activists originally hoped

With all the coverage of the presidential election, you'd be forgiven for having missed some of the big local stories that emerged out of November's election.  

A story I am just digging in to is Detroit's passage of a requirement that certain projects must offer a community benefits agreement.  That said, the voters passed "Proposal B," which would have far less impact and given communities far less say than the original activist-sponsored "Proposal A."  Very interesting developments.  Here is a story from Michigan Chronicle:

n a hard-fought race that drew a stark and heated dividing line between passionate Detroiters in a battle to determine what was the most sensible way to craft a community benefits ordinance that would actually benefit the community, a majority of the city’s voters sent a clear message early Wednesday morning that when it comes to how best to regulate and control community development projects in their neighborhoods, Proposal B is what makes the most sense. With 98 percent of all precincts reporting, it appeared likely Proposal B was the victor by a margin of 7 percentage points, 54-36 percent.

A bit of background: The community benefits ordinance which eventually became Proposal A was first introduced to City Council two years ago and was designed to give Detroit citizens more say-so in the development process. The original ordinance required that all $15 million development projects with at least $300,000 in subsidy be reviewed by host committees within Detroit communities.

The ordinance grew from a petition by a grassroots campaign, Rise Together Detroit. The campaign believed that the ordinance would help ensure that “those within ‘old Detroit’ are not left out” as the city continues to be developed. Rashida Tlaib, former Michigan House representative, is a leader in the push of the ordinance. In an interview with Michigan Radio, Tlaib suggested that the ordinance requires more of a burden for Detroit communities to get organized and that more public conversation regarding upcoming developments will discourage corruption. She said that what has come to be known as Proposal A would ensure that issues such as public health, noise barriers, quality of life and blight aren’t overlooked by developers.

Councilman Scott Benson submitted an alternative ordinance that is more palatable to the business community but has drawn significant fire from supporters of the original version. Opponents of Benson’s version, which became Proposal B, claimed he was trying to undermine the petition, which Benson strongly denied. Benson and his supporters (only three City Council members – Council President Brenda Jones, Councilwoman Mary Sheffield and Councilmember Raquel Castaneda Lopez – supported Proposal A) have consistently claimed that Proposal A was a poorly-worded and ultimately confusing contract that would, as a consequence, be difficult to enforce and would also discourage development in the city at a critical time when Detroit is just starting to wage a comeback.

Proposal B also offers a much higher project development threshold of $75 million compared to the $15 million offered by Proposal with the rationale that a $15 million development project is not big enough to expect any developer to put up with in addition to all other existing hurdles. Benson said that $75 million was more realistic. Proposal B also allows participation from city elected officials in the negotiation process between neighborhood groups and developers, whereas Proposal A shut out participation from city officials – elected or otherwise – altogether.

December 7, 2016 | Permalink | Comments (0)

Monday, December 5, 2016

CFP: Climate Change: Law, Policy and Regulation Symposium at Buffalo

The Buffalo Environmental Law Journal is seeking proposals for its spring symposium, "Climate Change: Law, Policy, and Regulation." The symposium will be held at the University at Buffalo School of Law on Saturday, March 11, 2017

 

Climate change is the most pressing environmental and human rights issue of our time. Yet, actual lawmaking in this arena has been slow to occur. Without comprehensive climate change legislation, efforts in the United States have largely focused on regulatory solutions under the Clean Air Act. The Obama Administration’s Clean Power Plan is the most recent attempt at a wide-reaching regulatory framework to address climate change drivers in the US. Yet, the Clean Power Plan faces many challenges. Advocates are grasping for other legal theories, including drawing upon the Endangered Species Act, the National Environmental Policy Act, and developing new theories like Atmospheric Trust Litigation. At the same time, challengers oppose increasing federal regulation. The Buffalo Environmental Law Journal is interested in exploring the legal challenges for climate change advocacy, alternative policy approaches, and the stumbling blocks for existing and proposed legal theories.  

 

Speakers are invited to discuss climate change law on all themes and content areas. Articles will be published in the Buffalo Environmental Law Journal's summer issue. Some suggestions for panel topics include -- 

Natural resource security

Alternative energy 

Climate change and endangered species 

Air and water quality

National and international security

Land use 

Human rights and environmental refugees

Environmental Justice and climate change

International agreements

Comparative climate change law

Climate change tax and finance

To submit a proposal, please send an article abstract (max. 250 words), as an email or attached document, to belj1993@gmail.com by 5pm EST on December 16, 2016. 

December 5, 2016 | Permalink | Comments (0)

Friday, December 2, 2016

Funded Doctoral Fellowships available to Qualified JD students to Pursue Water Law and Science at the University of Florida - Jan. 17th Application Deadline

The UF Law Environmental and Land Use Law Program is participating in the UF Water Institute’s Graduate Fellows Program which provides funding (tuition & stipend) for four years for qualified graduate students seeking to obtain a doctoral degree.  J.D. graduates from accredited law schools are encouraged to apply, and need not take the GRE.  J.D. students selected for the cohort will work closely with Legal Skills Professor Thomas T. Ankersen and other faculty in an interdisciplinary program that has its research theme based in Costa Rica.  Cohort students will participate in the UF Law Costa Rica Program in 2018, and in the UF Law Conservation Clinic.  Some Spanish is an asset but not required; there will be an expectation that the student will further develop language skills during their time in the program.  Details can be found in the flyer below and attached.  In addition to contacting the Water Institute directly as provided below, interested J.D. students can feel free to contact Professor Ankersen at ankersen@law.ufl.edu .  Note that the application deadline is January 16th, 2017.

Download POSTING_UF_Water Institute_Graduate_Fellowships

December 2, 2016 | Permalink | Comments (0)

BLM issues final rule on land use planning

On December 1, BLM issued a final rule that changes its approach to land use planning.  The program, known as "Planning 2.0," intends to front-load commenting and shorten the time-frame for plan adoption.  Here is more from the fact sheet on the final rule:

 

Fact SheetLand Use Planning – Final Rule

December 1, 2016

The BLM manages more than 10% of the nation’s land and 30% of the nation’s subsurface minerals under the authority granted in the Federal Land Policy and Management Act of 1976 (FLPMA).  FLPMA requires the BLM to manage the public lands for multiple-use and sustained yield.  To accomplish those management goals, FLPMA requires the BLM to prepare land use plans in coordination with other Federal agencies and state, local, and tribal governments.  Resource management planning is an essential tool for balancing the many competing uses and values of the public lands. 

The BLM’s regulations that guide the planning process have not been updated significantly in more than thirty years.  State, local and tribal governments and the public have told the BLM that the planning process is too slow – plans take an average of eight years to complete – and is not responsive or transparent to the public.  By the time resource management plans are completed, they often are outdated or challenged in court, further delaying implementation.  Concerns were also expressed that the plans are not responsive to the changing circumstances and demands on the public lands and do not use best practices to deal with new or ongoing issues.

 The BLM developed the final planning rule through significant outreach and discussion with State and local governments, communities, stakeholders, other governmental partners, and the public.  The goal of the final rule is to allow the BLM to more effectively address the complex issues facing the public lands in a timely manner and increase engagement. 

 

Highlights of the Final Rule

 

  • Involving the Public Early. The final rule enhances opportunities for public involvement in a number of ways, including the addition of a planning assessment as the first step in the process.  The BLM will first solicit input from stakeholders to help identify public viewsdefine the planning area boundary, and collect the best available information. In another new opportunity for public involvement, the BLM will develop preliminary alternatives, which will be made available for public review before the draft resource management plan is published.  These new steps are in addition to, not replacements for, all of the public involvement opportunities previously available in the planning process.
  • Promoting Efficiency We believe that early feedback from the public will make the planning process more efficient and effective. Supplemental analyses will be needed less often, and litigation should be reduced by identifying and addressing concerns and conflicts earlier.
  • Public Comment Periods Appropriate to the Task. The final rule increases the minimum period that public comments will be accepted on often-complex draft resource management plans from 90 days to 100 days.  In order to increase efficiency and in recognition of the fact that plan amendments are typically a lot shorter and less complex than full plans, the rule reduces the minimum comment period for draft amendments from 90 days to 60 days.  In appropriate circumstances any comment period also can be extended.
  • Strengthening Partnerships. The final rule preserves and enhances the BLM’s partnerships with state, local, and tribal governments.  FLPMA and the National Environmental Policy Act give other Federal agencies and state, local, and tribal governments a special role in the planning process and include coordination and consistency requirements.   If other governmental entities choose to participate as cooperating agencies, they work side-by-side with the BLM at every stage of the process, sharing information and draft documents that are not available to the public.  The rule also recognizes the unique coordination that will occur with other Federal agencies and state, local and tribal governments even if they choose not to be cooperating agencies so that the BLM keeps apprised of and considers their plans, policies, and management programs and assists in resolving any inconsistencies between their plans and BLM plans.   Finally, the new opportunities for public involvement discussed above also will be available to other Federal agencies and state, local, and tribal governments at early stages of the process.  
  • Planning With High Quality Information and at an Appropriate Scale. The final rule encourages planning at a scale that makes sense given the resources involved.  It ensures adequate flexibility to obtain high quality information about those resources at all stages of the process and to identify planning area boundaries and decision makers that are most relevant to the resource issues presented.  The decision maker will in most cases still be the State Director, as it is today, but the rule provides for other configurations when that makes sense. In addition, the rule supports the use of best practices developed over the years to consider the breadth of resource values, the uses that people make of those resources, environmental and ecological conditions on the ground, and the social and economic needs and concerns of local communities.
  • Adapting to Change. Pressures on BLM lands have increased due to growing demand for use, more competing uses, and resource issues such as invasive species and wildfire. The final rule will better enable the Bureau to respond to change by providing for the use of adaptive management. Under the final rule, resource management plans will set clear goals and objectives to guide future management and allow for the use of adaptive management techniques.
  • Reaffirming Essential FLPMA Policy. The final rule revises and clarifies the existing planning rule.  It reinforces the policy direction in FLPMA requiring management of the public lands for multiple use and sustained yield and includes a definition of the concept of sustained yield, emphasizing this core tenet of the BLM’s approach to public land management.

Key Differences between the Proposed Rule and Final Rule

 

Public Comment Periods Appropriate to the Task.  The proposed rule would have reduced the minimum length of formal public comment periods on draft land use plans (from 90-days to 60-days) and plan amendments when an environmental impact statement (EIS) is prepared (from 90-days to 45-days). 

Public comments largely supported the new, early opportunities for public involvement, but generally did not support a reduction in formal comment periods. The final rule adopts the new opportunities for public involvement and expands the current 90-day comment period for draft land use plans to 100 days. The final rule reduces the current 90-day comment period for EIS-level plan amendments to 60-days instead of 45-days as proposed.

Planning Areas and Responsibilities.  The existing planning regulations identify the BLM field office as the default boundary for land use plans and assign responsibility for the preparation of resource management plans to BLM Field Managers and approval of resource management plans to BLM State Directors. Under the existing regulations as well as the final rule, the BLM Director has the authority to assign these responsibilities to a higher level or to select a different boundary.

The proposed planning rule would have removed the default planning area boundary and replaced references to State Directors with “deciding official” and Field Manager with “responsible official.” Although many public comments supported these changes, other comments expressed concern that this approach would dilute local needs or concerns and reduce the ability of State and local governments to influence BLM resource management plans. The final rule adopts the proposed terminology changes to “responsible official” and “deciding official,” but provides that, when land use plans do not cross State boundaries, the default deciding official will be the BLM State Director.

Notice Requirements.  The proposed planning rule would have replaced several requirements to publish a notice in the Federal Register with a requirement to notify the public through other means, including direct email or posting to the BLM website and at local BLM offices. 

Many comments requested that the BLM retain all existing Federal Register notice requirements. In response to these comments, the final rule retains most existing Federal Register notice requirements, in addition to alternative forms of notification.

Distinction between Plan Components and Implementation Strategies.  The proposed rule would have distinguished between planning-level decisions (referred to as plan components) and strategies to implement the plan (referred to as implementation strategies).  This proposed change was intended to provide clarity on what is considered “planning-level” management direction and requires a plan amendment to change.

Many comments stated that the concept of “implementation strategies” created confusion and uncertainty, not clarity.  In response, the final rule adopts the proposed “plan components” which provide planning-level management direction, but does not adopt the proposed “implementation strategies.”  

Coordination with State, Tribal, and Local Governments.  The BLM received many public comments regarding coordination with State, Tribal, and local governments, as provided in section 202(c)(9) of FLPMA.  Many comments raised concerns that the proposed rule would diminish coordination requirements.  Several changes are made to clarify coordination requirements in response to these comments, while retaining the existing framework for coordination, to ensure the BLM “keep[s] apprised of the plans, policies and management programs of other Federal agencies, State and local governments, and Indian tribes.”  In addition, the final rule includes a new regulatory requirement to consult with Indian tribes on a government-to-government basis during the preparation and amendment of resource management plans.

Cooperating Agency Status.  The BLM received many public comments stating that the proposed rule contained language that commenters believed would restrict which agencies could participate as “cooperating agencies.”  This was not the intention, and this language was removed.  The final language tracks the Council on Environmental Quality’s NEPA implementation regulations and the Department of the Interior’s NEPA implementation regulations.

 Consistency with State, Tribal, and Local Government Plans.   Several public comments expressed concern that the proposed language could be read to narrow inappropriately the BLM’s responsibility to maximize consistency with the plans of other Federal agencies and State, local, and Tribal governments.  In response to public comments, the final rule revises the provisions related to consistency.  Changes include replacing “land use plans” with “plans”; defining “officially approved and adopted plan” as a “resource-related plan”; and removing proposed language which would have required consistency “to the extent the BLM finds practical.”   

 

 

 

December 2, 2016 | Permalink | Comments (0)

Thursday, December 1, 2016

Crimetown: A podcast about the unbelievable life of Buddy Cianci, America's most famous, and infamous, mayor

I can hardly believe it, but there is a new podcast answering some of the deepest questions I had as a young college student at Brown University in the earky Nineties:  who is this mayor Buddy Cianci, and how the hell does anyone ever become Buddy Cianci?  

As any east coaster knows, Buddy Cianci is the legendary mayor of Providence, Rhode Island, who did just about anything good a mayor ever did for a town, and also did just about anything bad a mayor could do for a town.  It's an incredible story... and now it's a podcast.  

I'm hooked.

Catch Crimetown here.

The trailer is embedded below:

 

 

December 1, 2016 | Permalink | Comments (0)

The shadow Carrier "incentives" and the return of corporate welfare masquerading as economic development

While President Trump is in Indiana this morning touting his retention of Carrier jobs, we all have reason to worry about what this deal portends for the next several years.  Vice-President Elect Mike Pence, who is still the Governor of Indiana where the factory is located, reportedly secured unspecified "incentives" for the facility to retain the jobs there.  The State of Indiana and Carrier refuse to specify terms of the incentives; this sets a terrible precedent.  

Those that follow the blatant corporate welfare that is traditional "economic development" policy know that these deals almost always mean tax breaks, tax incentives, or even tax credits to the corporation in exchange for job retention.  Those tax dollars--whether as foregone revenue or a return of revenue--mean that the citizens of Indiana are now subsidizing each job at the factory.  Put another way, Trump didn't "save" Carrier jobs; rather, he has forced the citizens of Indiana to pay the difference between off-shoring each Carrier job and keeping it in Indiana.  Time to come clean.

If Trump wants to engage in economic development activities for the working class, he should require, in exchange for whatever corporate welfare his future Vice President has forced Indiana residents to provide, that Carrier assist the working population with things like skill creation or improving community assets, such as schools, that could provide the workers' children a long-term competitive place in the global economy.  Requiring citizens of Indiana to subsidize Carrier, without requiring the company to invest in its workers, simply impoverishes the State and leaves its workers without long-term futures when the subsidies run out.

[Update:  Since I wrote this post, the NYT reported that the incentives were valued at $7 million over 10 years, though details still remain scant.]

 

 

December 1, 2016 | Permalink | Comments (0)

Wednesday, November 30, 2016

Thanksgiving with a refugee (via Airbnb)

A friend of mine here in Boise rents out her home on Airbnb enough to have earned herself "super host" status.  Several weeks ago, she was approached by Airbnb to engage in an activity that was remarkably wonderful and, to Airbnb's credit, not highly publicized:  they just did it.

The conceit was simple:  in cities with recent arrivals of refugees, Airbnb asked hosts if they would be willing to serve a newly-arrived refugee family Thanksgiving dinner.  My friend here in Boise agreed and was paired with a 7-member family recently resettled from the Congo:  a mother and father both ages 50, with children ages 21, 19, 16, 14, and 7 years old.  As folks may know, Boise has a large resettlement community and, amazingly, was the the city where hosts reached out the most of any place in the country.  Here is a follow-up e-mail my friend received from Airbnb:

. . . Across the country 41 host families invited over 130 newly resettled refugees from 8 different countries for dinner - with a couple rescheduled for next week. Boise led for the most number of plates served, with Pittsburgh and Raleigh coming in a close second.

New friends bonded over Thanksgiving turkey, stuffing, and dessert. So far, we’ve heard of children working on homework together while parents drank tea and made plans to spend time together in the future; One host family are taking their new friends sledding for the first time this winter and a host and guest family discovering they were really neighbors living within walking distance from each other.  
 
This was the first time we've tried this and working with multiple agencies across the United States was definitely challenging. Not every dinner was smooth - one host was left with lots of leftovers when most of the family did not arrive to one of the refugee families learning about the perils of Los Angeles Thanksgiving traffic (4 hours!). . . .
 
A great project, and one that gives hope especially in this time when the dominant national narrative is anti-thetical to precisely this kind of sharing and engagement.

November 30, 2016 | Permalink | Comments (0)